Executive Summary: Key Legal and Evidentiary Issues

• Whether the Ontario Energy Board’s (OEB) letters interpreting the Distribution System Code and allocating capital costs were “public” decisions amenable to judicial review or merely non-binding opinions in a private dispute.
• Proper interpretation of s. 2(1)1 and s. 2(1)2 of the Judicial Review Procedure Act (JRPA), including when certiorari lies and what constitutes a “statutory power of decision” affecting legal rights or liabilities.
• Characterization of the OEB’s role under s. 105 of the Ontario Energy Board Act, 1998: does its complaint-handling power include authority to issue binding determinations resolving disputes between regulated utilities and customers.
• Impact of the parties’ Connection Agreement “arbitration” clause referring the dispute to the OEB and whether this contractual mechanism can transform, limit, or define the OEB’s public-law powers and the reviewability of its decision.
• Consistency between the Divisional Court’s jurisdictional ruling (no reviewable decision) and the Superior Court’s later abuse of process ruling (treating the OEB outcome as a final determination) and how those frames interact with the OEB’s exclusive jurisdiction under s. 19 of the Act.
• Scope of a complainant’s procedural rights and standing in challenging the OEB’s refusal to hold a hearing or to take further enforcement steps, and whether such refusals are themselves judicially reviewable on fairness grounds.

Facts and procedural history

West Whitby Landowners Group Inc. (WWLG) is a cost-sharing trustee corporation representing 11 real estate developers engaged in residential subdivision projects in Whitby, Ontario. Elexicon Energy Inc. (Elexicon) is the licensed monopoly electricity distributor for the area, operating under a distribution licence issued by the Ontario Energy Board (OEB). Compliance with the OEB’s Distribution System Code (the Code) is a condition of Elexicon’s licence, and the Code itself is an “enforceable provision” under the Ontario Energy Board Act, 1998 (OEB Act).
To supply electricity to the new subdivisions, WWLG and Elexicon negotiated a December 2018 Offer to Connect, referred to in the reasons as the Connection Agreement. Under this agreement, electricity service to the developments would be provided through a municipal substation, MS16, and two transformers. The Code distinguishes between an “expansion” and an “enhancement” of the distribution system. If new works are classified as an expansion, the distributor may require a capital contribution from the connecting customer; if they are enhancements, the utility must bear the costs itself. The classification of MS16 therefore determined who would pay several million dollars in capital costs.
Unable to agree on whether MS16 was an expansion or enhancement, the parties included an arbitration-style clause in the Connection Agreement. Under that clause, disputes over the Code categorization and associated cost responsibility would be referred to the OEB, and “the decision of the OEB on the Dispute shall be final and binding upon all the parties to the Dispute and there shall be no appeal therefrom.” Thus, the contract embedded the OEB’s interpretive and adjudicative role, treating its outcome as the final word on the allocation of capital contributions between WWLG and Elexicon.

The complaint to the OEB and the Code issues

On 15 February 2019, WWLG sent a detailed submission to the OEB’s Industry Relations office. It requested what it called an “interpretation under the Code” that would “address in a final and binding manner” four specific questions: whether MS16 was an expansion or enhancement; what portion of capital costs WWLG had to bear; whether Elexicon could demand a $775,000 capital contribution for future relocation of hydro infrastructure; and what connection horizon applied for cost calculations. WWLG expressly asked the OEB to confirm whether Industry Relations could give a determination that would be “as if it were rendered as a decision of the Board itself,” and, if not, to refer the matter to a full hearing. Substantively, WWLG argued that MS16 should be treated as an enhancement, that the Code required Elexicon to fund it, and that requiring WWLG to pay without full recovery was contrary to the Code.
The OEB treated this correspondence as a complaint under s. 105 of the OEB Act, even though the word “complaint” was not used. Section 105 authorizes the Board to receive complaints about conduct that may contravene an enforceable provision, make inquiries, gather information, and “attempt to mediate or resolve complaints.” The Court of Appeal later emphasized that “resolve” in this context includes the authority to make binding legal determinations, not merely non-binding facilitation. Coupled with s. 19(1) and 19(6), which confer on the Board exclusive jurisdiction to “hear and determine all questions of law and of fact” in matters within its mandate, s. 105 formed the statutory basis for the OEB to interpret and apply the Code to the WWLG–Elexicon dispute.

The OEB’s letters and findings on expansion vs. enhancement

On 16 August 2019, the OEB, through its Vice President for Consumer Protection and Industry Performance, responded with what it described as OEB staff’s “views and conclusions.” The August 2019 letter stated that Elexicon had “applied the regulatory provisions of the [Code] correctly to the WWLG expansion” and had “appropriately calculated the capital costs for the project that should be paid by WWLG.” In summary, the OEB concluded that MS16 should be treated as an “expansion,” that Elexicon was in compliance with the Code, and that WWLG was responsible for the capital contribution determined under the Code rules. While the letter did not expressly label itself a “decision” of the Board, it was framed as the resolution of the issues that gave rise to the dispute, with no indication of being tentative or subject to further internal adjudication.
WWLG disagreed. In a 18 November 2019 letter, it characterized the August response as an “opinion” that did not actually answer the four framed questions or fully resolve the dispute. It sought “reconsideration,” now labeling its position a “formal complaint” and requesting an investigation into whether Elexicon had contravened the Code. WWLG supplied further submissions supporting its position that the Code had been misapplied. In turn, the OEB obtained submissions from Elexicon; however, those submissions were not shared with WWLG, which later formed part of the procedural fairness concerns.
On 6 July 2020, WWLG again wrote to the OEB, this time explicitly asking that a full hearing be convened to determine the dispute. The OEB responded on 18 December 2020 with a second, more detailed letter that it expressly treated as the conclusion of staff’s review of WWLG’s complaint. This December 2020 letter reaffirmed that MS16 was an expansion, confirmed that the appropriate connection horizon under the Code was five years, and accepted that WWLG should be responsible for the contested relocation costs. However, based on additional information, the OEB adjusted the cost allocation: it concluded that Elexicon should bear $710,109 of the capital costs, and that WWLG should pay approximately $4.2 million in capital contributions. The letter expressly stated that the analysis in the August 2019 letter remained the foundation for these conclusions, and it closed by saying that the correspondence “concludes OEB staff’s review of this complaint.”
The net result was that, on the OEB’s view of the Code and the Connection Agreement, the infrastructure for MS16 was categorized as an expansion for Code purposes. WWLG was therefore obligated to make a multimillion-dollar capital contribution to Elexicon, with a defined allocation formula and connection horizon, rather than having Elexicon bear the full costs as an enhancement.

The Divisional Court’s judicial review decision

Following the December 2020 letter, WWLG applied to the Divisional Court for judicial review. It alleged procedural unfairness, arguing that the OEB should have held a hearing, that it had been deprived of access to Elexicon’s responsive submissions, and that the decision embodied in the August 2019 and December 2020 letters was substantively unreasonable. Instead of reaching those merits, the Divisional Court dismissed the application for lack of jurisdiction.
The Divisional Court reasoned that the OEB’s correspondence did not amount to the exercise of a “statutory power of decision” under s. 1 and s. 2(1)2 of the JRPA. It characterized the August 2019 letter as an “opinion” furnished at the parties’ request as part of a private dispute resolution process, and the December 2020 letter as little more than a decision not to take further steps on a complaint under s. 105 of the OEB Act. On that view, the only public-law decision was the OEB choosing not to proceed with enforcement action or a hearing, and that decision did not affect WWLG’s “legal rights, powers, privileges, immunities, duties or liabilities” within the meaning of the JRPA.
The Divisional Court also held that WWLG lacked standing to compel the OEB to hold a hearing. It relied on the structure of Part VII.1 of the OEB Act, under which only a person against whom the Board issues a compliance order may demand a hearing, and such compliance orders may only be made on the Board’s “own motion.” Because WWLG was a complainant, not a regulated entity subject to an order, it had no statutory right to trigger a hearing and thus, in the Divisional Court’s view, no basis to seek judicial review of the refusal to hold one.

The Superior Court’s abuse of process ruling

After the Divisional Court refused judicial review, WWLG launched a separate application in the Superior Court of Justice seeking a judicial determination of the same underlying questions: the proper interpretation of the Connection Agreement and the Code, and the correct allocation of capital costs between WWLG and Elexicon. The premise was that if the OEB had not truly “decided” the matter for JRPA purposes, a court of general jurisdiction could now adjudicate the contractual and regulatory issues directly.
Elexicon responded with a motion under Rule 21.01(3) of the Rules of Civil Procedure, arguing that the new application was an abuse of process. Justice Suzan Fraser, sitting in the Superior Court, agreed and dismissed the application. She held that, while the OEB had not exercised a statutory power of decision in the narrow JRPA sense articulated by the Divisional Court, it had in substance resolved the dispute between WWLG and Elexicon pursuant to the Connection Agreement. As a result, WWLG’s attempt to relitigate was barred as an abuse of process.
The Superior Court also accepted that interpretation of the Code, and determinations flowing from that interpretation, fell within the OEB’s exclusive jurisdiction under s. 19(6) of the OEB Act. In that court’s view, WWLG’s application was doubly problematic: it was an attempt to re-argue an already resolved matter, and it sought relief on questions squarely reserved to the OEB by statute.

The Court of Appeal’s analysis of reviewability and public law character

On appeal, WWLG challenged both the Divisional Court’s jurisdictional ruling and, in the alternative, the Superior Court’s abuse of process decision. The Ontario Court of Appeal focused primarily on the Divisional Court’s conclusion that there was nothing judicially reviewable about the OEB’s handling of the MS16 dispute. The key question was whether the OEB’s letters were exercises of public power subject to judicial review under the JRPA or merely a non-reviewable private opinion and case handling.
The Court of Appeal began by clarifying that s. 2(1) of the JRPA provides two distinct pathways to judicial review: applications for prerogative-type relief such as certiorari, mandamus, or prohibition, and actions for declarations or injunctions concerning the exercise or refusal to exercise a statutory power. Crucially, it reaffirmed that availability of relief in the nature of certiorari under s. 2(1)1 does not depend on there having been a “statutory power of decision” as defined in s. 1. Those concepts are related but distinct. The controlling question for certiorari is whether the impugned conduct is an exercise of state authority of a “sufficiently public character,” as explained in Supreme Court decisions such as Highwood Congregation v. Wall and applied in Ontario cases such as Khorsand v. Toronto Police Services Board.
Using that framework and the Air Canada factors, the Court held that the OEB’s actions here were decidedly public. The Board had exercised its exclusive statutory jurisdiction under s. 19 to interpret and apply the Code and had done so in the course of resolving a complaint under s. 105. Its correspondence addressed questions of law, allocated legal and financial responsibilities between a regulated utility and a customer, and applied binding regulatory instruments. The fact that the dispute originated in a private Connection Agreement, or that the agreement’s arbitration clause promised to treat the OEB’s determination as “final and binding,” did not strip the Board’s decision of its public character. Nor did the use of staff letters, rather than a formal Board “order,” preclude the existence of a reviewable decision.
Turning to s. 2(1)2 of the JRPA, the Court of Appeal examined whether the OEB had exercised a “statutory power of decision” that prescribed or decided legal rights or liabilities. It concluded that it had. The Court characterized the February 2019 submission as a complaint calling into question whether Elexicon’s classification of MS16 and its capital contribution demands were “contrary to the Code.” It held that s. 105 empowered the OEB not only to mediate complaints but to “resolve” them through binding determinations. Combined with s. 19, that authority allowed the OEB to render definitive interpretations of the Code in a complaint context.
On the facts, the Court found that the December 2020 letter, incorporating the August 2019 reasoning, amounted to a final decision of the Board. It was not merely an “opinion,” as the Divisional Court had assumed, but a binding ruling that MS16 was an expansion, that Elexicon had complied with the Code, and that WWLG was required to pay approximately $4.2 million in capital costs with Elexicon bearing a portion. That decision, the Court said, prescribed both the legal rights of Elexicon under the Code and the contractual duties of WWLG under the Connection Agreement, which in turn were shaped by the regulatory interpretation. As such, it fell squarely within s. 1’s definition of a statutory power of decision and was reviewable under s. 2(1)2.
The Court also clarified the standing and fairness issues around the OEB’s failure to hold a hearing. It agreed that WWLG could not compel the Board to initiate compliance proceedings or issue a Part VII.1 order, nor could it demand a hearing as of right, since only the subject of such an order may request a hearing. However, the Court emphasized that the Board’s decision not to take further steps on a complaint is not insulated from judicial review. While a complainant cannot force the Board to prosecute or hold a hearing, it can in principle challenge serious procedural unfairness or arbitrariness in how a complaint is disposed of. The Divisional Court’s blanket denial of jurisdiction therefore overstated the limits on review and conflated the absence of a statutory right to a hearing with the absence of all public-law controls on the Board’s conduct.

Outcome and implications

In its disposition, the Court of Appeal allowed the appeal from the Divisional Court. It held that WWLG’s application for judicial review should not have been dismissed for want of jurisdiction. The OEB’s letters constituted a final, binding decision interpreting the Code, resolving the MS16 dispute, and prescribing the legal and financial obligations of WWLG and Elexicon. That decision was “of a sufficiently public character” to be subject to judicial review and amounted to the exercise of a statutory power of decision under the JRPA. Because the Court reached this conclusion, it found it unnecessary to undertake a separate, detailed analysis of WWLG’s appeal from the Superior Court’s abuse of process ruling, though it noted that several aspects of the motion judge’s reasoning—such as recognizing that the OEB had in fact decided the dispute and that the Code’s interpretation lay within its exclusive jurisdiction—were consistent with the appellate court’s own analysis.
As to costs and money, the Court of Appeal declared WWLG to be the successful party on the appeal and held that it is entitled to its costs, but the judgment does not fix any specific dollar amount. Instead, it directs the parties to exchange short written submissions on the quantum of appellate costs within prescribed timelines. No costs are awarded against the OEB. There is no damages award or quantified monetary order in favor of WWLG in this decision; the only monetary aspect addressed by the Court concerns entitlement to costs on the appeal, with the exact amounts yet to be determined.